Rightly Nobel Peace laureate Archbishop Destmond Tutu says”If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”
India is a huge country in South Asia. It is the seventh largest in terms of land area but the second largest in terms of population. It has 1.2 billion people and the most populous democracy in the world. Owing to its diversity as a country and its societies, it has a secular image and considered to be a very inclusive society -- multi-ethnic, multi-religious, multi-linguistic and multi-cultural society. The country has projected a 9% development index but can be considered far worse than the Sub-Saharan countries due to its failure to address the malnutrition and starvation in many parts of the country.
Considering its vast geography and population, India remains to be divided, discriminating and intolerant even to its own citizenry and among fellow citizens. Marginalization continues to punctuate as the most significant problem in the whole of Indian society affecting major sections of the population such as caste, the Muslims, and various ethnic groups, including the vulnerable ones such as women, children, and the elderly.
The caste hierarchy has divided and separated Indian society for decades. Despite several laws and Constitutional guarantees, caste lines and caste discrimination became the defining situation in India. It is reflected across societal spectrum and so evident that it identifies the great inequalities of caste based practice in the whole society.
Caste is the final and ultimate indicator of everything that is happening in India. The caste based discrimination is reflected in both the private and public life of the Indian people. Its influence radiates in politics, administration, including the economic growth of the country. It thus affect the high percentage of the population of the country and is actually practiced in the educational system, places of work, in villages and districts and even in courts of justice. The most dehumanizing impact of the caste based discrimination is starvation and malnutrition.
The Dalit peoples continued to experience discrimination, exploitation and oppression as this is sustained by the corrupt criminal justice delivery mechanism in the country. This is very evident in the context of Uttar Pradesh where PVCHR is mainly operating its programs and projects. In this state, policing suffers from impunity and police officers enjoy the corrupt practices at the expense of the most marginalized section of the population not only in this state but in other parts of the country.
Torture and police atrocities further aggravate the already dire poverty situation and marginalization of the downtrodden people in majority of the villages in different parts of the country. Torture normally happens in the rural areas, in the far-flung villages of the country where Dalits, the lower caste and the minority people could not effectively fight for their rights. They are the primary targets and victims of torture by the police. Without awareness yet of their rights, these marginalized peoples suffer in silence and brokenness.
Torture and organised violence against the marginalised remains an entrenched and often routine law-enforcement strategy, despite India‘s status as the world‘s largest democracy. Dalits, Adivasis and other backward caste face atrocities and discrimination in all spheres of life. It verifies in the data collection of 361 survivors in the project under Rehabilitation and Research Centre for Torture Victims (RCT) and People‘s Vigilance Committee for Human Rights (PVCHR), in which 89% of survivors belong to schedule caste, indigenous group and other backward classes (OBC). Considerable physical violence is inflicted on members of these deprived and marginalised communities as substantiated by official reports. Policing, far from being the professional imposition of a coherent moral consensus on society‘ is an intensely political activity with policemen often facilitating and participating in the violence not just against these two communities but against minorities, other weaker sections and women.
Police routinely fail to register cases under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, which criminalises acts of violence and intimidation against members of scheduled castes and tribes that are committed by non-members. The Act carries greater sentences for offences already criminalised under the Indian Penal Code, such as murder and rape. According to Justice Ramaswamy, former Supreme Court judge and member of the National Human Rights Commission (NHRC), police register complaints as Code offences instead of Act offences so high-caste perpetrators do not face the higher sentences imposed by the Act 144 Another police tactic is to register complaints of serious crimes under the Act‘s provision criminalising insults and intimidation, which carries a lesser sentence.
Adivasis tortured by Orissa police in so-called anti-Maoist operation
There is a general impression, that poor dalits and tribals are not only do menial work in the society they also form the major source of churning anti-socials and criminals. Unfortunately, a culture of silence has permeated in the society historically. The privileged people mostly believe and have made the state believe that they cannot go wrong. That is why one finds most of the custodial torture, and violence and death are committed against marginalised and deprived caste. Many dalits are tortured and subjected to humiliation and degrading treatment in public like garlanded with slippers and sandal, colouring black and white and riding over ass etc. So they have the divine right to use and abuse or discriminate against the dalits, tribals and other backward castes. Indian Police learnt from practice of caste system of demoralisation and community punishment. Demoralising the lower caste is very common with a view to make them silence, so that they cannot raise their voice. When a person from upper caste commits crime, after trial the person is punished. However when it comes to the lower caste the entire community is punished. This punishment is not from court of law, but from the upper caste and the police provide its sound support in implementing punishment to lower caste.
The refusal of the police to investigate a case of caste discrimination is common and they failed to register cases under Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act. The SC/ST Act meant to ensure proper investigation by a high ranking police official within thirty days is rarely adhered to. As a consequence the accused moves out of the jail. Sometimes, different Human Rights Institutions like NHRC and National Commission on Schedule Caste are working as champion against above mentioned misdeed
Reluctance on the part of the police to register and investigate crime makes the victim much more vulnerable. Police assumes that the victims cannot fight case for long and above all cannot pay bribe. By the time the victims fulfils either or both the conditions, evidence are destroyed or leading to ―go cold, which ultimately makes prosecution unlikely. Poor crime victims are also likely to be able to call local influential figure to intervene with police on their behalf, while their perpetrator may have police protection due to political connections.
Minorities bear the brunt of the Communal Violence:
India‘s secular character provides the freedom to all the countrymen to choose their own religion, a right provided in the Article14, 15 and 16 of the Constitution. It also ensures that the state cannot discriminate on the basis of religion. However, in reality, things are different. The marginalisation of the
Muslim community, the largest among the minority groups is complete. This has been corroborated by the Prime Minister‘s High-Level Committees on Minorities in 2006, headed by Justice (Retd.) Rajinder Sachar. Discrimination is compounded by hatred against Muslims has been initiated and spread by right wing fundamentalist Hindu groups under the patronage of a Bharatiya Janata Party resulted in riots. Bhagalpur (1989), Bombay (1992-93) and Gujarat (2002) riots exposed the biased perception of police towards Muslims. Several committees investigating the riot cases have confirmed the dubious role of the police and other state apparatus.
Widespread torture of the Indian police over the minorities
The youth and the poor, perceived primarily as trouble making, violent groups were harassed and booked under draconian laws like Terrorism and Disruption Act (TADA) and Prevention of Terrorism Act (POTA) which provides sweeping power to security agency and completely denies civil and political right to the victim. Denial of access to justice is the single most important factor that alienates the Muslim and other minority, Dalit and tribal community from the mainstream. Seldom have human rights institutions and National Commission for Minorities, primarily constituted to address the violation of rights of the minorities have lived up to its constitutional mandate. The situation is characterised by a relative vacuum insofar as the issues of police torture or protection of human rights are concerned.
In the report released in June 2012 report by Tata Institute of social sciences, the observation is that 36% of the jail inmates in Maharashtra are Muslims while the population of Muslims in state is close to 10.6%. The report was sponsored by the Maharashtra States‘ Minorities Panel. The findings of the report are in conformity with the Sachar Committee report and general observation of Human rights activists. Most of the arrests of Muslim youth are prompted by the prevalent stereotype of Muslims are criminals, terrorists‘. These stereotypes are highly prevalent not only in society but also amongst the bureaucracy, particularly the police and amongst intelligence agencies. Many in the police force are totally in the grip of communal thinking and with their infinite power they unleash themselves against the Muslim youth at every conceivable opportunity. The rise of communalisation of society and more particularly after the coming up of the terrorism of Al Qaeda variety, the stereotypes about Muslims have worsened. One recalls that this type of terrorism was subtly brought up by United States for pursuing its goal of controlling the oil wealth. The attitude of authorities has become more anti minority and this in turn has undermined their professionalism and they are guided more by their biases than by the rules of law.
In Gujarat police colluded with Hindu mobs in killing and rampaging
There are multiple reasons for the Muslim youth being targeted by the state authorities. True, that some Muslim youth have fallen prey to the illegal activities due to the abject poverty which they have to suffer. Still the major reason for their being indiscriminately arrested by the police relates to the misconception regarding acts of terrorism and communal violence.
The attitude of police remains as biased as before and in the day to day life they display this partisan behaviour. This biased attitude of state machinery, police and intelligence authorities in the main, has been ruining the life and careers of many a Muslim youth. The feeling of insecurity amongst the community as a whole is on the rise. This feeling of insecurity is crippling the possible growth of the community. Those implicated in such acts are also boycotted by the community and have faced immense personal, social and economic losses. It is time that the Human rights groups intensify their campaign to protect the innocent Muslim youth, the legal measures need to be strengthened whereby the police cannot exercise its biased attitude in arresting any Muslim youth. Measures are needed to ensure that police-intelligence agencies takes up more professional attitude overall and more particularly in the matters related to minority youth. The Government needs to wake up and apply the correcting measures Thus, in the context of the minority community, the key areas which need to be addressed are:
a) While raising the issues of police torture and organised violence, there is a scant support. Palpable reluctance is observed among the Human Rights Defenders (HRDs) to work within the community where “culture of silence‘ against perpetrators prevails and a threat of Hindu fascism looms large. PVCHR developed their programme for Muslim which focused on breaking the barriers of silence within the community and activating the state against the perpetrators;
b) Ignorance among majority of the victims on how to approach the National Commission for Minorities and avail the benefits like free legal-aid. No one ever monitors whether these facilities are ever used by the target groups or not;
c) HRDs are lesser equipped with the information for monitoring national laws, international human rights instruments and mechanisms useful for crisis management;
d) No networking among local human rights organisations coupled with absence of an active civil society groups fails to create a need-based campaign for legislative advocacy even among their elected community representatives;
e) Resource crunch, notably materials, which greatly undermines the effectiveness of the work of human rights defenders
Patriarchy reinforces by abusing, battering and discriminating women:
Most women in India suffer directly or indirectly by the existing patriarchal structure of the society. They become either primary or secondary victims in all kinds of torture. In the RCT – PVCHR collaboration 27.64% women facing torture and organized violence were psychologically supported through testimonial therapy. In fact, Uttar Pradesh remains at the highest position on crime against women primarily due to rape, torture for dowry and harassment against women.
Discriminatory and organised violence against women includes domestic violence, dowry linked violence, sexual assault and sexual harassment. All this are indicative of the extent of the problem and proves that human rights initiative in India lacks gender perspective of Torture and Organised Violence. Dalits are considered untouchable in Indian society, yet rape of dalit women is not considered forbidden by the upper caste, in fact, the later uses rape as an instrument of continuous subjugation. Dalit women bear a triple burden; discrimination and exploitation based on caste, class and gender. Women are also victim of violence by securities forces and armed opposition groups, traditional justice delivery system like Caste panchayat or Khaap panchayat, which imposes its writ through social boycotts and fines and in most cases end up either killing or forcing the victims to commit suicide. Discriminatory attitudes and lack of sensitisation to the dynamics of crimes involving sexual or domestic violence leave victims without critical police aid or redress to which they are entitled.
Domestic violence continues unabated.....
The police attitude that domestic violence is primarily of private nature is the most unfortunate trivialisation of a grave social evil, that too when the police is empowered to arrest the perpetrator without a warrant. 6 The protection of Women from Domestic Violence Act, 2005 was enacted to augment women‘s immediate protection from violence through emergency relief, including access to temporary protection order and domestic violence shelters.7But lawyers and activists says that due to poor implementation of law, women facing imminent and life threatening violence remain hostage to police attitude. This attitude of the police perhaps stems from its traditional legacy of ‘rule of lords‘the same like its colonial masters. This is the common bonding between the police and the rural kulaks in India which do not believe in the concept of welfare state.
Impunity in the Indian Police:
Indian police and security officials who commit torture or inflict other cruel, inhuman or degrading treatment or punishment have long enjoyed impunity for their actions. Several provisions within the Indian Criminal Procedure Code (CrPC) and various national security related laws provide immunity to these officials. Section 197 of the CrPC allows for all-encompassing immunity by providing that the Central or State Government in question must grant sanction for the prosecution of any Government official or member of the armed forces alleged to have committed a criminal offence ―while acting or purporting to act within the discharge of his official duty. The Supreme Court has upheld this provision 9 and has stated that even those who abuse their power are considered to be ―acting or purporting to act in their official position and thus enjoy immunity. 10 Other examples of immunity provisions in the CrPC include section 45(1), which specifically protects members of the armed forces from arrest without prior sanction for acts purportedly committed during official duty 11 and Section 132(1), which protects police, armed forces, and even civilians who engage in activities to help disperse crowds from prosecution without prior sanction. Similarly with respect to national security legislation, the infamous Armed Forces Special Powers Act (AFSPA) provides immunity from prosecution barring government sanction for armed forces personnel purporting to act in the exercise of their powers, even while granting vast powers to, for instance, shoot and kill.
Indian police enjoys impunity
The insensitivity of the Judiciary and Human Rights Institutions makes it extremely culpable in contributing to impunity that persists and aggravates the problem. Evidence indicates that the poor are increasingly being criminalised. The limitation of the enforceable power of the National Human Rights Commission (NHRC) has been a matter of concern for everyone.
Police usually commit extrajudicial killing with impunity. Media and NGOs have documented hundreds of such killings but their efforts at accountability have been hampered by systematic police deniability. The absence of records, including in many cases a post-mortem examination or registry of arrest and detention, makes it very difficult to disprove the police‘s account. Independent investigations are critical to reducing impunity, but despite the presence of the National Human Rights Commission (NHRC) and their state counterparts, they are rare in much of India. Police investigations, either initiated by police or undertaken at the direction of external agencies, are often ineffective due to a ―code of silence that makes police unlikely to disclose incriminating evidence.
Police commit extrajudicial killing with impunity
In the absence of an independent investigation, officers who issue illegal orders or pressure subordinates to carry out abuses can lay the blame exclusively on their subordinates. Criminal prosecution has the potential to check police abuse, but victims often do not file cases because they fear police retaliation. Another major obstacle is section 197 of the Criminal Procedure Code, which provides immunity from prosecution to all public officials unless the government approves the prosecution.
The National Human Rights Commission (NHRC) has the authority to recommend an independent investigation either by another division of the local police or by the Central Bureau of Investigation, but this often results in the police effectively investigating it. Even where this is done with integrity, the process does not have the appearance of independence and impartiality in lack of rule of procedure on basis of International Human Rights standards, leaving victims and families suspicious of the process.
But injustice and exploitation of the people cannot always proceed smoothly unscathed. Small steps for justice can accumulate and result in qualitative change in due time.
The contextual adaptation of the testimonial therapy in the country is truly effective. It has empowered the survivors' well-being (Agger, et al). As the survivors gained control after converting the traumatic event to a story of survival and share it to the public through an honour ceremony, it then provided support for the survivors' search for truth and meaning. The survivors gained empowerment when they have reclaimed their voice by becoming advocates/defenders for those who are still in pain and suffering.
PVCHR has utilized the Danish concept of ‘folk school’ for the purpose of the community in terms of awareness building, capacitating the different sections of the population of the community including women, children and young people. The TT served as a bridge for the healing (psychological component) and justice (the legal component) in line with advocacy.
The 'folk school' in the Indian context has served as a forum where the marginalized peoples like Dalits, the Mushars, and the Muslims meet, where they are treated equally and could freely voice their problems and concerns. The 'folk school' helps to improve equality by improving the capacity of the marginalized peoples to speak. In the short but intense process of the school, they can speak without fear and without the threat of humiliation. In said process also, they are able to create a two-way discourse in the society wherein the so-called weak are brought to social discourse. The more silent the poor and the weak are, the less they get from society.
For example, in creating a discourse on justice and human rights issues related to caste discrimination, it is very important to accumulate information and protect the efforts in documentation.[i]
Mohammad Aamir Khan was released from prison, after fourteen years of incarceration remaining innocent all throughout, PVCHR recognized and honoured his courage and conviction in a ceremony where the organization provided him with an amount of money for his mother's treatment. His mother got sick due to his prolonged imprisonment and his father died also while working for his release. This is what he had to say about his experience:
'Despite what happened to me, how can I be against my country? I am proud of the Constitution of India. Its democracy and human dignity serves as my inspiration. As a human rights defender now, I will work with the grassroots, create awareness among them and uphold human dignity. He is grateful to PVCHR for the help and he would want to serve as a uniting factor for the Muslim people. It is along this direction that he wanted to work in partnership with PVCHR.'
Rightly Nobel Peace laureate Archbishop Destmond Tutu says"If you are neutral in situations of injustice, you have chosen the side of the oppressor. If an elephant has its foot on the tail of a mouse and you say that you are neutral, the mouse will not appreciate your neutrality.”